dissenting.
Having joined the dissent of Huntley, J., I would add how remarkable it is that the majority can state that there is no issue of fact needing to be resolved, even though the provisions of Chapter 12, Title 6, Idaho Code (which the majority correctly notes are not absolved by Sun Valley’s exculpatory clause, which provisions impose standards of care upon Sun Valley toward users of its services such as the Plaintiff) were never addressed, argued, or briefed before the district court. It is not a district court finding that there are no material fact issues — even in light of Chapter 12, Title 6, Idaho Code — but rather this Court making such a bald declaration, a declaration which is a brazen usurpation of the district court’s duties and an unwarranted and unwise sortie by this Court into the realm of issues outside its proper function as an appellate court.
The majority further err in the conclusion that Sun Valley’s exculpatory clause absolves it from common law liabilities. *981Our own precedential case law teaches otherwise and is directly applicable in the interpretation of exculpatory clauses such as the one employed by Sun Valley.
Although the majority cites Anderson & Nafzinger v. G.T. Newcomb, Inc., 100 Idaho 175, 178, 595 P.2d 709, 712 (1979) and other Idaho cases for the proposition that parties to a transaction can contractually agree to limit liability for negligence or waive rights and remedies normally available if certain requirements concerning the exculpatory agreement are satisfied, it avoids mention of the pertinent sentence in Anderson & Nafziger which should be this day guiding the Court: “it is nevertheless well established that courts look with disfavor on such attempts to avoid liability and construe such provisions strictly against the person relying on them, especially when that person is the preparer of the document.” Id. (Emphasis added). In this case, Defendant is relying upon an exculpatory clause which it prepared, thus the clause necessarily has to be strictly construed against Defendant.
With this in mind it requires a creativity of mind beyond mine to understand how this clause exculpates Defendant from all common law liabilities. Simply put, it does not, but purports to exculpate Defendant only from those acts for which it declares that Defendant shall not be held liable— which is that Sun Valley shall not be held liable for injuries caused by its horse or by its equipment. Such is the written word. Mr. Lee, however, alleges that a Sun Valley employee was negligent in cinching the saddle to the horse, and that it was this negligence that caused his injuries. Mr. Lee does not allege that the horse caused him harm, or that the equipment caused him harm. Rather, he states that it was the employee’s negligence that caused his harm in not properly tightening the saddle’s cinch, having just recently loosened it. This allegation of negligence is not covered by Defendant’s exculpatory clause, and presents a genuine issue of fact of whether the Sun Valley employee was negligent. Thus, the granting of summary judgment cannot be sustained, and should be reversed, and the cause remanded for further proceedings.
Particularly difficult to accept is the majority’s use of the following generality as a predicate upon which to base a decision which some will see as result-oriented instead of reason-oriented; the majority states: “There are some statutory rights and duties which may be waived or exempted from contract.” This is backed up by citations from other jurisdictions, each one of which appear to have nothing to do with tort liability for violation of obligations of due care for the safety and welfare of others. Thus, these cases are totally inapplicable here, wherein it is tort liability against which Defendant has sought to contractually immunize itself.
The legislature has imposed certain duties and obligations upon the operators of motor vehicles, such as to drive with regard for appropriate road and weather conditions, and to avoid striking other vehicles and pedestrians. Under the rationale of the majority, such statutory duties may be contractually exempted. The legislature has criminalized the selling of alcoholic beverages to minors. Under that same rationale the proprietor of a tavern would be well-advised to emulate Defendant’s successful use of a patron’s rental agreement to let out its stools, chairs, and tables with similar hold harmless language. While there are for certain better analogies which might illustrate the point, time constraints under the Court’s rules of production preclude further discussion.
It is, or should be, sufficient to say, however, that when common law duties of due care are given specific attention by the people through their legislature, such statutory obligations should be judicially held at least less susceptible than under the common law, as a matter of public policy, to judicial nullification by application of waiver and contractual exemptions. Certainly when the document signed by the Plaintiff is measured by the guidelines set forth in Anderson & Nafziger and those guidelines are applied as they were applied *982in Anderson & Nafziger, the document cannot by any stretch of logic, be said to speak clearly and directly to the conduct of the Defendant which caused the injury complained of by the Plaintiff.
Even if the instrument signed by the Plaintiff Lee could be conceded for the sake of argument to meet the stringent standards of interpretation and application that are mandated by law, the instrument could not defeat Plaintiffs cause of action. In the case before the Court the Defendant was engaged in an activity in which there is a public interest and any contract seeking to excuse the Defendant from its duty from safe guarding the safety and freedom from injury of the Plaintiff is contrary to public policy and therefore unenforceable. This rule of law is recognized in all jurisdictions. The rule is stated in 17 Corpus Juris Secundum, Subject: Contracts, § 262 at page 1160 in the following language:
A contract for exemption from liability for negligence is generally void and unenforceable if it is violative of law or contrary to some rule of public policy, as where a legal or public duty is involved; (Underscoring supplied)
Corpus Juris Secundum again states the rule under the subject of Negligence in 65-A C.J.S. § 174(7) at page 303 in the following language:
Depending on the public policy as declared in a statute or ordinance, the doctrine of assumption of risk, or the maxim, Volenti non fit injuria, may not constitute a defense where the violation of the statute or ordinance is involved, and the benefit of such legislation may not be waived by plaintiff, at least where it was enacted for the public good. (Underscoring supplied).
Substantially the same rule is stated in 17 American Jurisprudence 2d under the subject: Contracts, at § 188, page 557, in the following language:
However the law does not look with favor on provisions which relieve one from liability for his own fault or wrong. It is a well-settled general doctrine that the law will not sustain a covenant of immunity which protects against fraud or relieves one of a duty imposed by law for the public benefit. (Underscoring supplied).
The Defendant in the case before the Court is engaged in an activity that is regulated by the law of the State of Idaho in the exercise of the State’s Police power. The Defendant, Sun Valley Company, is a licensed Outfitter and its employee who conducted the trail ride in question, Kari Kreinheder, was a licensed guide (see deposition of Kreinheder, lines 14 and 15) as was the other employee, Carey Jill Chandler (deposition of Chandler page 24, lines 5 and 6) who was employed and aided in the removal of the Plaintiff on the day in question. In the public interest, the State of Idaho has seen fit to regulate and license Outfitters and Guides (see Title 36, Chapter 21, Idaho Code, 2101 through 2118). That legislation provides in depth for the regulation of activities of Outfitters and Guides. It spells out the guidelines by which Outfitters and Guides are governed, provides for the creation of an Idaho Outfitters and Guides Board, the appointment and qualification of its members and grants to that Board the right to prescribe regulations further governing the activities of Outfitters and Guides including the right to make and enforce rules and regulations necessary for the purpose of safeguarding the safety and freedom from injury of persons utilizing the services of Outfitters and Guides. Clearly its opening Section 36-2101, containing its declaration of policy, contains a statement of public policy of the State of Idaho with respect to Outfitters and Guides and their activities. Section 36-2101, the initial section of the law, entitled Declaration of Policy, provides in pertinent part as follows:
The intent of this legislation is to promote and encourage residents and nonresidents alike to participate in the enjoyment and use of the mountains, rivers and streams of Idaho, and the fish and game therein, and to that end to regulate and license those persons who undertake for compensation to provide equipment *983or personal services to such persons, for the explicit purpose of safeguarding the health, safety, welfare and freedom from injury or danger of such persons, in the exercise of the police power of this state. (Underscoring supplied).
It is at once apparent from reading the Declaration of Policy that it is clearly intended by the enactment of the legislation to safeguard the freedom from injury or danger of any person participating in the regulated and licensed activities embraced by the legislation. Section 36-2101 defines generally the scope of the legislation and is sufficiently all-inclusive to include trail rides of the type here in question. The activity is more specifically defined in the regulations adopted by the State of Idaho Outfitters and Guide’s Board, at page 1 thereof, which provides as follows:
1. The Idaho Outfitters and Guide’s Act applies to all those who provide facilities, equipment or services for the conduct of hunting, fishing boating, or hazardous mountain excursions for compensation, whether the compensation is in the form of cash, goods, or services. Hazardous mountain excursions includes trailrides, backpacking, technical mountaineering/rock climbing, cross country skiing, back country alpine skiing, and snowmobiling. (Underscoring supplied).
To permit the enforcement of the document signed by the Plaintiff Lee by the Defendant, particularly in the manner in which the Defendant seeks to enforce and invoke the same here, would make a mockery of a substantial part of the Outfitters and Guides Act of the State of Idaho. Prom reading the entire Declaration of Policy as set forth in Section 36-2101, Idaho Code it is clear that it was intended to encourage the participation and enjoyment and use of the mountains, rivers and streams of Idaho, by both residents and nonresidents and to provide, among other things, for the safety and freedom from injury, of those participating. To permit such a document to be enforced would open the door to the extinguishment of every obligation by a licensed Outfitter or Guide which is provided for by law and is a part of the public policy of the State of Idaho. 57 American Jurisprudence 2d, Subject; Negligence, § 25 at page 369 speaks specifically to obligations such as this where statutory provisions are intended to protect the public from injury. The rule is stated in the following language:
It is well settled that statutory liability for negligence cannot be contracted away. Where an injury results from a violation of a statutory duty which establishes a certain standard of conduct for the protection and benefit of the members of a class, an immunity contract or clause exculpating a defendant from liability for negligence is unenforceable as contrary to public policy. (Underscoring supplied)
The Idaho Legislature recognized that the mountains, rivers and streams of Idaho were attractive to and should be enjoyed by both the residents of the state and nonresidents. It saw fit therefore in the self declared exercise of its police power to enact specific in depth legislation. The Legislature recognized the attraction of Idaho’s mountainous areas. The Legislature saw that Outfitters and Guides were necessary to permit a large class of people to fully enjoy all the state’s mountainous areas had to offer. The Legislature recognized that there was a growing business in the form of Outfitters and Guides who were conducting supervised expeditions for various sporting reasons in Idaho. The Legislature sought to make this growing business responsible and sought to provide for the safety of that class of persons who might use the services of Outfitters and Guides. Thus the Legislature enacted Title 36, Chapter 21, of the Idaho Code.
In the trial court the Defendant argued that it was not a common carrier and that no public duty was involved with respect to it’s horse rental operation. Plaintiff admits that it makes no difference that the Defendant’s horse rental operation was not a common carrier. The enactment of Title 36, Chapter 21, Idaho Code, regulating and licensing Outfitters and Guides makes it clear that the Defendant indeed has a pub-*984lie duty which is expressly spelled out in the pertinent portion of the declaration of policy Section 36-2101, Idaho Code (Supra), wherein it states that the intent of the Legislation is for the explicit purpose of safeguarding the safety and freedom from injury or danger of persons employing the services of Outfitters and Guides. This question is addressed in the Restatement of contracts at Section 575, at pages 1080 and 1081, which provides in pertinent part as follows:
ILLEGAL BARGAINS FOR EXEMPTION FROM LIABILITY FOR WILFUL OR NEGLIGENT MISCONDUCT.
(1) A bargain for exemption from liability for the consequences of a wilful breach of duty is illegal, and a bargain for exemption from liability for the consequences of negligence is illegal if
(cl) ********
(b) one of the parties is charged with a duty of public service, and the bargain relates to negligence in the performance of any part of its duty to the public, for which it has received or been promised compensation.
American Jurisprudence 2d recognizes the Restatement rule in above quote. In 57 American Jurisprudence 2d subject Negligence Section 27 that text recognizes that while the rule is inclusive of common carriers and other public utilities that it is also inclusive of other entities having a “duty of public service”. The rule is stated at 57 American Jurisprudence 2d at page 372 in the following language:
The application of the Restatement rule as a declaration of basic principles is not limited to the contracts of enterprises which are necessarily or ordinarily classified as public utilities or public service companies, but has been extended to the exculpatory contracts to those who may assume a “duty of public service” at least to certain segments of the public, such as innkeepers, and to warehouse-men. Also, insofar as such an agreement relates to negligence in the performance of any part of the duties for which compensation is received, the principles implicit in the rule have been applied to those engaged in enterprises as
diverse as the operation of airports, or the business of supplying bottled gas.
Certainly if innkeepers, warehousemen, operators of airports and suppliers of bottled gas are held to have a “duty of public service” so also would Outfitters and Guides particularly where the Legislature of this state has spoken on the subject.
The Plaintiff asserts that if that is the case that the various statutes that have been enacted by the Idaho Legislature regulating businesses, professions and occupations are meaningless and serve no public purpose. Followed to its logical conclusion this would include not only Outfitters and Guides but doctors, lawyers, engineers, architects and real estate brokers. With respect to the legislation enacted, regulating Outfitters and Guides, the rule rendering exculpatory clauses unenforceable has very obvious application. Its Declaration of Public Policy has the language “for the explicit purpose” of safeguarding safety and freedom from injury. It is enacted pursuant to the police power of the state. If the statutory mandate can be avoided by an exculpatory clause, unquestionably, every person licensed under the Outfitters and Guides Act, could by contract, absolve himself completely of all obligations to the public and there would be no need for the enactment of that legislation.